Pelletier v. City of Ashton

• Decision Date: 10 January 1900
• Citation: 81 N.W. 735,12 S.D. 366
• Parties: PELLETIER et al. v. CITY OF ASHTON.
• Court: South Dakota Supreme Court

81 N.W. 735

12 S.D. 366

PELLETIER et al. v. CITY OF ASHTON.

Supreme Court of South Dakota

January 10, 1900

Appeal from circuit court, Spink county; A. W. Campbell, Judge.

Proceeding by Stephen Pelletier and others against the city of Ashton to have certain territory excluded therefrom. From a judgment for plaintiffs, defendant appeals. Affirmed.

Corson J., dissenting.

D. W Poindexter, for appellant. Sterling & Morris, for respondents.

FULLER P. J.

The defendant city resisted upon its merits the petition of plaintiffs, based upon and conforming to the following statutory provision: "On petition in writing signed by not less than three fourths of the legal voters and by the owners of not less than three fourths (in value) of the property in any territory within any incorporated city or town, and being upon the border and within the limits thereof, the city council of the city or the board of trustees of the town, as the case may be, may disconnect and exclude such territory from such city or town; provided that the provisions of this section shall only apply to lands not laid out into town lots or blocks." Comp. Laws, § 1115. In accordance with section 1117, Id., providing a remedy in case the city council refuse to grant such petition, the same was presented to the circuit court; and this appeal is from a judgment granting the relief sought. Briefly stated, and in substance, the court found that the defendant city of Ashton is a municipal corporation having about 300 inhabitants, and a bonded indebtedness of $6,000, incurred in the year 1885; that the area of said city was, and still is, 2 miles square, and includes within its limits 4 sections of land, while but 72 acres thereof has ever been platted; that none of the land severally owned by plaintiffs, and described in their petition, has ever been laid out into city lots or blocks, but the same has always been used for agricultural purposes; that the owners have never received any benefit by reason of the same being included within corporate limits and it is not necessary that such land, or any part thereof, be retained within said limits for police or sanitary purposes, nor is the same used for any public purpose whatsoever. It was further found that the rate of taxation for this land greatly exceeds that of similar tracts adjoining and outside the corporate limits, which condition is due solely to the fact that said land is assessed for municipal purposes. After finding that petitioners had taken all preliminary steps in strict conformity with the statute, that the matter of revenue was the only benefit that the city would receive from the retention of such lands within its limits, and that the owners thereof would be benefited by having the same segregated and excluded therefrom, the court made the following conclusion of law: "That the request of the petitioners ought to be granted, and the same can be granted without injustice to the inhabitants of the city of Ashton or others interested, and that said petitioners are entitled to an order disconnecting and excluding the lands described in their petition from the limits of said city."

Counsel for appellant says, "That petition contains all the statutory allegations, and no contention is made that the necessary preliminary steps were not taken up to the time of the trial." While the petition purports to be that of citizens of the city of Ashton, and was opposed upon the theory that the creditors holding its bonds would be injured and the burden of the municipality increased, by disconnecting and excluding the lands mentioned, it is urged "that the court erred in finding that the city of Ashton is a municipal corporation." The concession of counsel for appellant expressly includes the presentation to the city council of Ashton at a regular meeting thereof, and upon due notice the petition of respondents, which said city council refused to grant. Furthermore, it is conceded that thereafter, and in a manner required by law, notice of filing said petition in the circuit court was served upon the mayor of the city of Ashton, together with notice of the time and place of hearing. Moreover, it was clearly shown by the statements of the mayor and members of the city council, sworn on behalf of appellant, that the city of Ashton is a municipal corporation, as will be seen by the following extracts from the evidence disclosed by the record. S. P. Watkins testified: "Am one of the city council of the city of Ashton. Have been acquainted with the financial condition of the city since its organization. Have been in the city council several years. *** Have been acquainted with the assessments made from year to year upon the unplatted land within the city limits of the city of Ashton. *** Bonds were issued in the fall of 1885, or early in the spring of 1886, for the purpose of putting in water mains in the city, and to build the city hall and court ...